AS TO THE ADMISSIBILITY OF
Application No. 24761/94
by Ayse Nur ZARAKOLU
against Turkey
The European Commission of Human Rights sitting in private on
11 October 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 July 1994 by
Ayse Nur Zarakolu against Turkey and registered on 3 August 1994 under
file No. 24761/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in Antalya. She is the
director and owner of a publishing house in Istanbul. She is
represented before the Commission by Professor Kevin Boyle and Ms.
Francoise Hampson, both university teachers at the University of Essex,
England.
The facts, as submitted by the applicant, may be summarised as
follows:
In July 1991 the publishing house owned by the applicant
published a book by the Turkish sociologist Dr. Ismail Besikci,
entitled "The Republican Popular Party's Program (1931) and the Kurdish
Problem".
On 8 August 1991 the Public Prosecutor of Istanbul State Security
Court issued an indictment against both Ismail Besikci and the
applicant and charged them, as the author and the publisher of the
book, with making propaganda against the indivisibility of the State.
The Public Prosecutor referred to the provisions of the Anti-Terror
Law. Pursuant to the indictment, criminal proceedings were initiated
before the State Security Court of Istanbul against the applicant and
the author.
On 1 July 1993 the Court held that the applicant and the author
were guilty of the offences with which they were charged. The applicant
was sentenced to five months' imprisonment and fined 41,666,666 Turkish
Lira.
The applicant's legal representative challenged the judgment of
the State Security Court before the Supreme Court. On 5 November 1993
the Supreme Court dismissed the appeal. This decision was communicated
to the applicant's legal representative on 10 November 1993.
On 3 January 1994 the applicant applied to the Chief Public
Prosecutor of the Supreme Court, through the Chief Public Prosecutor
of the Istanbul State Security Court, and requested that the case be
brought before the Supreme Court for rectification of the judgment
(tashihi karar). On 31 January 1994 the Chief Public Prosecutor of the
Supreme Court rejected this request.
At the time the application was presented to the Commission, the
applicant was in Bayrampasa prison to serve her sentence.
COMPLAINTS
The applicant complains, under Article 7 of the Convention, that
she was held guilty of a criminal offence on account of an act which
did not constitute a criminal offence under Turkish law at the time
when it was committed. She asserts that until her case it had always
been understood that a publication as in her case, would not fall
within the definition of "a periodical", for the dissemination of which
the law foresees the imprisonment of the owner or the director of the
publishing house.
The applicant further complains that there has been an
interference with her right to freedom of expression by public
authority in that her right to impart information and ideas as
guaranteed by Article 10 has been undermined by her conviction for
publishing a book.
THE LAW
The applicant complains that she was convicted of a criminal
offence on account of an act which did not constitute a criminal
offence under Turkish law at the time when it was committed (Article
7 (Art. 7) of the Convention). She further complains that there has
been an interference by a public authority with her right of freedom
of expression (Article 10 (Art. 10) of the Convention).
The Commission considers that the applicant's petition to the
Chief Public Prosecutor of the Supreme Court requesting him to bring
the case before the Supreme Court for the rectification of the judgment
does not constitute an effective remedy under domestic law (e.g.
No. 18549/91, Sever v. Turkey, Dec.12.2.92; No. 22273/93, Varli v.
Turkey, Dec. 20.1.94).
The final decision regarding the applicant's conviction and
sentence is accordingly the decision of the Supreme Court which was
given on 5 November 1993 and communicated to the applicant on
10 November 1993. The present application was submitted to the
Commission on 29 July 1994, that is more than six months after the date
of this decision.
Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have interrupted or
suspended the six months period provided for in Article 26 (Art. 26)
of the Convention.
It follows that the application has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy